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ELRCOtherNot stated in judgment ( Memorandum of Claim dated 20th November 2023)· [2024] KEELRC 821 (KLR)

Kenya Union of Domestic Workers, Hotels, Educational Institutions and Hospital Workers Union (KUDHEIHA) v Board of Management - Kaimosi Teachers Training College (Employment and Labour Relations Cause E024 of 2023) [2024] KEELRC 821 (KLR)

Employment and Labour Relations Court
16 April 2024
4,023 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A union that starts conciliation must finish it before suing in court, or its case will be dismissed as premature.

What this practically means

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Executive summary

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The Claimant, a trade union representing domestic, hotel, hospital and school workers, sued the Respondent board of management for refusing to negotiate and conclude a Collective Bargaining Agreement. The union had recruited a simple majority of unionisable employees, signed a Recognition Agreement in January 2021 under section 54 of the Labour Relations Act, and forwarded a proposed CBA in April 2021 under section 57. Negotiations stalled through repeated postponements, and the union reported the dispute to the Cabinet Secretary under section 62; a Conciliator was appointed in March 2022. Parties met before the Conciliator and on 22nd August 2023 agreed several non-monetary clauses, leaving financial clauses unresolved. Citing continued delays, the union filed this claim on 21st November 2023 without a Conciliator's Report, Certificate, or affidavit under Rule 5(3) of the ELRC (Procedure) Rules, 2016. The court framed two issues: prematurity and entitlement to reliefs. Following its own decision in the Kolanya Girls High School case, the court held that a party invoking conciliation under section 65 must exhaust it before litigating, that abandoning conciliation mid-stream renders the suit premature, and that the conciliation process remained pending. While affirming the union's right to collective bargaining under Article 41 of the Constitution, ILO Conventions 87 and 98, and section 54 of the LRA, the court declined to grant the reliefs sought, referring the matter back to the appointed Conciliator to finalise conciliation on the unresolved financial clauses within 30 days, and directing registration of the negotiated CBA within 15 days of signing. No costs order was made.

Key legal issues

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01

Whether the claim is premature

Holding

The claim was premature because conciliation had not concluded and no certificate of unresolved dispute issued

Reasoning

The dispute had been reported to the Cabinet Secretary and a Conciliator appointed under section 62 of the LRA. Section 69 deems a dispute unresolved only upon a conciliator's certificate or expiry of the thirty-day period. The parties were still negotiating CBA clauses before the conciliator. Under Rule 5(3) of the ELRC (Procedure) Rules, 2016, the claim should have been accompanied by a Conciliator's Report, Certificate or an affidavit explaining why conciliation had not concluded. None was availed. Article 159(2) requires courts to promote ADR, and a party who invokes conciliation must exhaust it.

p. 7
02

Whether the Claimant is entitled to the orders sought

Holding

The reliefs sought were not granted; the court recognised the union's right to collective bargaining but referred the unresolved financial clauses back to the conciliator

Reasoning

The court acknowledged the right to fair labour practices and collective bargaining under Article 41 of the Constitution, ILO Conventions 87 and 98, ICESCR Article 8 and sections 4, 5 and 54 of the LRA. However, since conciliation remained pending and financial clauses were unnegotiated, the court directed parties to proceed to conciliation, gave the conciliator 30 days, and required registration of the signed CBA within 15 days. No evidence of member intimidation was produced.

p. 9

Legal principles established

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  • A party who invokes conciliation under the Labour Relations Act must exhaust those mechanisms before coming to court; abandoning conciliation mid-stream renders the suit premature
  • Where a dispute has been subject of conciliation, the Claim must be accompanied by a Conciliator's Report, Certificate of Conciliation, or an affidavit attesting to why no certificate issued
  • A recognised trade union representing a simple majority of unionisable employees has a right to expect collective bargaining with the employer

Court orders

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  1. 1.The parties to proceed to Conciliation to resolve the pending aspects on Finance in the proposed CBA
  2. 2.The matter is referred to the appointed Conciliator on the unresolved trade dispute to finalise the conciliation process on the collective bargaining within 30 days of the judgment
  3. 3.The Respondent to cause the negotiated CBA to be registered with the Court within 15 days of the parties' signing
  4. 4.It is so Ordered

Authorities

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Legislation

  • Labour Relations Actsection 54
  • Labour Relations Actsection 57 (including 57(5))
  • Labour Relations Actsection 62
  • Labour Relations Actsection 65
  • Labour Relations Actsection 69
  • Labour Relations Actsection 4
  • Labour Relations Actsection 5
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 5(3)
  • Constitution of KenyaArticle 41
  • Constitution of KenyaArticle 159(2)
  • International Covenant on Economic, Social and Cultural RightsArticle 8
  • ILO Convention 87 (1948)
  • ILO Convention 98 (1949) (Right to Organize and Collective Bargaining)

Cases cited (1)

  • Kenya Union Of Domestic Workers, Hotels, Educational Institutions and Hospital Workers Union v Board of Management Of Salvation Army Kolanya Girls High School
    (Employment and Labour Relations Cause 6 of 2023) [2023] KEELRC 3161 (KLR) (30 November 2023)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Article 162(2) implied by forum; ELRC (Procedure) Rules, 2016 Rule 5 and Labour Relations Act, sections 54, 57, 62, 65, 69 discussed)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Union of Domestic Workers, Hotels, Educational Institutions and Hospital Workers Union (KUDHEIHA) v Board of Management - Kaimosi Teachers Training College (Employment and Labour Relations Cause E024 of 2023) [2024] KEELRC 821 (KLR)", Case Analysis (2024). Not stated in judgment ( Memorandum of Claim dated 20th November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/821/eng@2024-04-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.